United States District Court, D. Maryland
L. Hollander United States District Judge.
Memorandum, the Court resolves the Motion filed by Darrius
Carr under 28 U.S.C. § 2255, seeking to vacate, set
aside or correct his sentence (the “Petition”).
ECF 41. The government has filed a response in opposition to
the Petition. ECF 47 (“Opposition”). Petitioner
has not replied, and the time to do so has expired.
28 U.S.C. § 2255(b), a hearing is required
“[u]nless the motion and the files and records of the
case conclusively show the prisoner is entitled to no relief
. . . .” This is such a case. No hearing is necessary.
For the reasons that follow, I shall deny the Petition.
Procedural and Factual Background
Carr was charged on June 17, 2015, in a three-count
indictment with the offenses of production of child
pornography, in violation of 18 U.S.C. § 2251(a) (Counts
One and Two), and possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count
Three). The Indictment pertained to the defendant's
sexual abuse and production of child pornography with respect
to a young female child who was in his care, as well as the
production and distribution of child pornography. Throughout
the course of the proceedings, the defendant was represented
by a seasoned attorney with the Office of the Federal Public
November 19, 2014, the defendant entered a plea of guilty to
Count One of the indictment (production of child
pornography), in violation of 18 U.S.C. § 2251(a).
See ECF 25; ECF 47-1 (guilty plea transcript). The
plea was entered in connection with a Plea Agreement executed
by Mr. Carr. ECF 20. Pursuant to the Plea Agreement, and
under Rule 11(c)(1)(C), the parties stipulated to a sentence
of 300 months of incarceration. See ECF 20 ¶
11. As set forth in ¶¶ 6, 7, and 8 of the Plea
Agreement (ECF 20), the parties anticipated a final offense
level of 45, which took into account related conduct and
three deductions for acceptance of responsibility.
Plea Agreement included as Attachment A a stipulated
Statement of Facts. See ECF 26. The Statement of
Facts indicated, inter alia, that on both March 7
and March 11 of 2014, Carr was left alone with a female
child, who was then almost three years of age. During that
time, Carr produced a series of photographs and a video of
himself and the child, focusing on the child's vagina and
anus, and depicting him touching the child's genitals. In
addition, in one video, Carr performed oral sex on the child.
anticipation of sentencing, the probation office prepared a
Presentence Report (“PSR”). ECF 28. In addition,
counsel for Mr. Carr submitted a Sentencing Memorandum. ECF
to the PSR, after deductions for acceptance of
responsibility, Carr had an offense level of 45. At the
sentencing on January 26, 2015, there were no disputes
regarding the calculation of the sentencing guidelines.
See ECF 46 (Sentencing Transcript); see
also ECF 47-3 (same). The court determined that Carr had
a final offense level of 45 (ECF 46 at 10) and that he had a
criminal history category of III. Id. at 11. With an
offense level of 45 and a criminal history category of III,
the defendant's advisory sentencing guideline range
called for life imprisonment. However, the offense of
conviction carries a maximum period of incarceration of 30
years for the single count to which the defendant entered a
plea of guilty. Therefore, the guideline range was thirty
years' incarceration. And, consistent with the “C
plea, ” the Court imposed the agreed upon sentence of
25 years of incarceration, followed by a lifetime of
supervised release. See ECF 32; ECF 33. Carr did not
file a direct appeal to the Fourth Circuit.
was born in 1992. ECF 28 at 2. In his Petition, Carr argues
that he received ineffective assistance of counsel. In
particular, he complains that his lawyer “did not fully
explain plea agreement and threatened [him] with additional
time if [he] had chosen to go to trial.” ECF 41 at 4.
Further, he asserts: “Counsel did not defend [him] in
the charge and conviction of aiding and abetting which is NOT
part of Count One of Indictment.” Id. In
addition, Carr claims: “Counsel refused [his] request
to petition Court for mental evaluation when there is clear
history of mental issues.” And, Carr asserts:
“Counsel flatly refused to defend me other than to
demand I plead out.” Id. Carr also complains
that his sentence of 300 months “is excessive and
discordant in the interest of justice.” Id. at
5. He adds that the sentence “does go beyond what is
reasonable punishment to serve the purpose of public
safety.” Id. In his view, the sentence is
disparate and “shows the propensity for unfairness and
discretional abuse . . . . Considering that this is
Petitioner's first offense twenty-five (25) years does
not fit the crime.” Id.
Carr asserts that “mitigating circumstances [were] not
considered.” Id. at 7. In this regard, he
maintains that the victim was only two years of age at the
time, and thus “had no cognizant memory of the
event.” He adds: “While Petitioner takes
full responsibility for his actions, the mitigating
circumstances argue against a sentence of 25 years because
there was no true victim impact. The Petitioner did not share
or distribute the photos and/or videos with anyone [and] the
victim has suffered no harm . . . .” Id.
2255(a) of Title 28 of the United States Code, under which
Carr filed his Petition, provides relief to prisoners in
federal custody only on specific grounds: that the sentence
was imposed in violation of the Constitution or laws of the
United States; that the court was without jurisdiction to
impose such a sentence; that the sentence was in excess of
the maximum authorized by law; or that the sentence is
otherwise subject to collateral attack. In reviewing the
Petition, the Court is mindful that a self-represented
litigant is generally “held to a ‘less stringent
standard[ ]' than is a lawyer, and the Court must
liberally construe his claims, no matter how
‘inartfully' pled.” Morrison v. United
States, Crim. No. RDB-10-0507; 2014 WL 979201, at *2 (D.
Md. Mar. 12, 2014) (internal citations omitted); see also
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines
v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims
of self-represented litigants are held “to less
stringent standards than formal pleadings drafted by
lawyers”); Bala v. Commonwealth of Virginia
Dep't of Conservation & Recreation, 532 Fed.
App'x. 332, 334 (4th Cir. 2013) (same).
contends that he received ineffective assistance of trial
counsel, which, if so, would constitute a violation of his
rights under the Sixth Amendment. The right to effective
assistance of counsel is a well recognized basis for relief
under § 2255. See generally Missouri v. Frye,
___ U.S. ___, 132 S.Ct. 1399 (2012); Lafler v.
Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); Padilla
v. Kentucky, 559 U.S. 356 (2010). To challenge
successfully a sentence of imprisonment under 28 U.S.C.
§ 2255 based on a Sixth Amendment claim of ineffective
assistance of counsel, a petitioner must satisfy the
two-prong test set forth in Strickland v.
Washington,466 U.S. 668, 687-88 (1984). See Chaidez
v. United States, ___ U.S. ___, 133 S.Ct. 1103, 1107-8
(2013); Roev. Flores-Ortega, 528 U.S. 470,
477 (2000); Lafler, 132 S.Ct. at 1384; Hill v.
Lockhart,474 U.S. 52 (1985); United States v.